Study on "The effect of 'Brexit' on the unitary patent regulation and the unified patent court agreement"

Richard Gordon QC and Tom Pascoe were instructed to advise the IP Federation, the Chartered Institute of Patent Attorneys and the Intellectual Property Lawyers Association on “The effect of ‘Brexit’ on the unitary patent regulation and the unified patent court agreement” (Legal opinion on the UK's participation in the UPC after Brexit). The question is important as a section of the central division should be based in London (the seat being in Paris). Their report was delivered on 12 September 2016. It does not depend on whether the UK joins the EEA.

The authors consider, firstly, that the UK may only continue to participate in the unitary patent by entering into a new international agreement with the EU and Member States. The legality of such an agreement would depend on the same matters as the legality of the UK’s continued participation in the UPCA.

Secondly, they consider that it would be constitutionally possible for the UK to continue to participate in the UPCA after ‘Brexit’, so long as it signs up to all of the provisions of the Agreement which protect EU constitutional principles. The CJEU may however be of a different opinion.

Thirdly, according to the authors, it would only be possible to obtain a pre-emptive opinion from the CJEU on the legality of the UPCA if the Union became a party to the Agreement.
Finally, the UK divisions of the UPC would have to cease operating if the UK ratified the UPCA, without amendment, and subsequently left the EU. In those circumstances, it would be necessary to adopt detailed transitional provisions in order to protect accrued rights and to regulate the position of litigants with pending proceedings.